Jacobson Gives Expert Testimony in Douglas and Zeta-Jones v. Hello!
Prof. Arthur Jacobson gave expert testimony in February 2003 in a suit brought by Michael Douglas and Catherine Zeta-Jones against Hello! magazine for publishing unauthorized photographs of their wedding. The well-publicized trial was in Chancery Division of the High Court of Justice in London; Professor Jacobson, who was engaged by the claimants, testified via video conference from Manhattan. Professor Jacobson’s testimony focused on New York law, which does not govern the actual publication of the photographs, but was relevant to the question of whether or not the paparazzo had taken the photographs in an unlawful manner.
The photographer, Rupert Thorpe, son of Jeremy Thorpe, former leader of the Liberal Party in Britain, overcame elaborate security precautions at the Plaza Hotel, where Douglas and Zeta-Jones had gone to great lengths to protect their privacy, insisting upon confidentiality agreements from service providers and instructing guards, who were posted at the ballroom entrance, to bar cameras. Among the reasons for the precautions was to protect an exclusive the couple had given OK! magazine, Hello!’s British rival and a fellow claimant.
The unlawfulness of the photographer’s behavior figured in the claim that ultimately prevailed, what the British call "commercial confidentiality." (In the United States a similar tort is called "misappropriation.") The theory behind commercial confidentiality is that Douglas, Zeta-Jones, and OK! had a commodity— the right to publish photographs of the couple’s wedding— whose value they sought to, and could, protect by maintaining confidentiality. When the paparazzo surreptitiously took the unauthorized photographs and Hello! published them, they breached a duty of confidentiality, which they had by virtue of their knowledge of the measures taken by Douglas and Zeta- Jones, thus injuring the value of the commodity.
Because confidentiality in Britain is a claim in equity, the claimants had to show that Hello!’s "conscience" had been tainted by "unconscionable" behavior. In his judgment, Mr. Justice Lindsay wrote, "Breach of confidence apart, had the Hello! defendants opened their eyes they would have seen that the taking of the photographs which they bought had involved at least a trespass. The fact, as I have held it to be, that they did not in advance and in terms require or authorise on their behalf trespass and surreptitious photography by Thorpe or by any other paparazzo does not disprove the unconscionability, as I hold it to be, under English law, of their publication of the unauthorised photographs in England and Wales." The judge held also that the photographs had been obtained by "misrepresentation or subterfuge."
Justice Lindsay awarded Douglas and Zeta-Jones £14,600 for the Hello! defendants’ breach of commercial confidentiality, and £3,750 to each of them for their distress. He also awarded OK! £1,033,156 damages for lost profits. In addition, under British law the losing defendants had to pay the claimants approximately £3,000,000 in legal expenses.
Professor Jacobson’s counterpart for the defense was Prof. Diane Zimmerman of New York University Law School, a specialist in intellectual property law and the First Amendment.
Three Join Faculty;Six Visit
Barton Beebe, a visitor to the Cardozo faculty prior to a yearlong clerkship with Judge Denise Cote, US District Court, joined the full-time faculty this fall along with Daniel Crane and Susan Crawford. The three received appointments as assistant professors of law. Professors Crane and Crawford bring to Cardozo years of experience in major law firms in New York and Washington, DC.
Dean Rudenstine welcomed the newcomers to the Cardozo community and said, "Barton, Susan, and Dan bring exceptional talent to the campus. Our students and faculty will greatly benefit from their wealth of practical experiences and their enthusiasm for scholarly exchange." Professor Crane teaches Contracts and Antitrust Law; Professor Crawford teaches Property and Law of Cyberspace, and Professor Beebe is teaching Copyright, Trademark, and Advanced Trademark.
Professor Beebe, previously featured in the winter 2001 issue of Cardozo Life (www.cardozo.nethttp://www.cardozo.yu.edu/life/
), is a graduate of the University of Chicago and earned a Ph.D. in English from Princeton University prior to attending Yale to study law. At Yale, he was senior editor of Yale Law Journal and articles editor of Yale Journal of Law & the Humanities. His interest in intellectual property stemmed from his concern with cultural property and its embracing of high and low culture. His article "The Semiotics of Trademark Law" will be published in the UCLA Law Review.
Prof. Daniel Crane, who practiced at Paul, Weiss, Rifkind & Garrison for four years, said he is enjoying the switch to academia, where he can "choose topics that interest me, even if they don’t have immediate applications in a pending case." He also likes the range of discussions with students and professors— talking about federal sentencing guidelines one minute, South Africa’s constitution the next, and then later on, family law. "It keeps me on my toes and thinking about other disciplines," he said.
Antitrust law has interested Professor Crane since he was a law student at the University of Chicago. But it wasn’t until he began working at Paul, Weiss that he had major opportunities to develop his expertise in this field as his work focused on complex antitrust litigation, joint venture antitrust counseling, and merger review.
He is now applying that experience to his current research—writing on antitrust enforcement in the tobacco industry. According to Professor Crane, the antitrust laws ordinarily are concerned with collusive or monopolistic conduct leading to reductions in consumption, but that approach does not translate well to industries with harmful output, where reduced consumption is actually desirable. He proposes that, instead of focusing on consumption reduction in harmful industries, the antitrust authorities should consider whether the conduct at issue will increase or decrease the social harms caused by the industry. For example, a merger between two cigarette companies might be undesirable if it would stymie development of less harmful cigarettes.
On campus, Professor Crane is an advisor to the students of the Federalist Society; this fall, at their request, he moderated a panel on Federal Sentencing Guidelines. He said he is pleased with the quality of student interchanges in and outside the classroom. "They make my job enjoyable," he said. Professor Crane worked for two years at the Miami office of Morgan, Lewis & Bockius and clerked for US District Judge Kenneth L. Ryskamp. He holds a B.A. from Wheaton College, magna cum laude, and a J.D. with honors from the University of Chicago, where he was a member of the Law Review. He is fluent in French and Portuguese.
Prof. Susan Crawford joins Cardozo after several years as a partner at Wilmer, Cutler & Pickering, where her practice included litigation, counseling, and transactional work, and focused on intellectual property, advertising, privacy, domain names, and ecommerce policy issues. Professor Crawford switched to academia because "life is short," she said. "I was already writing a great deal and had taught copyright at Georgetown University Law Center and decided to devote myself to teaching full-time."
Her specialties are related to Internet policy, including ICANN (Internet Corporation for Assigned Names and Numbers), an experiment in the governance of particular online resources (domain names and IP addresses) by a private enterprise. She also consults on new policy about digital copyright subjects, such as the broadcast flag (a system of encryption of content protecting against unauthorized redistribution of television programs), and "closing the analog hole," which relates to new rules regulating the conversion of content from analog to digital forms.
Her expertise is a valuable asset to Cardozo’s strong intellectual property law program. She serves as a policy fellow at the Center for Democracy & Technology, a think tank in Washington, DC, and is involved in the Internet Policy Project of the Aspen Institute. She said she enjoys living in New York and teaching the "wonderful and engaging" students at Cardozo.
She received a B.A. summa cum laude and a J.D. from Yale University, where she was the principal violist in the Yale Symphony Orchestra. After graduation, she clerked for Judge Raymond J. Dearie, US District Court for the Eastern District of New York. Professor Crawford said she still plays the viola every day, and after becoming more familiar with the New York music scene, hopes to take up performing again.
As in previous years, several professors visit during the academic year. New to campus is Prof. Richard A. Bierschbach, who prior to his visit was an associate at the New York office of Wilmer, Cutler & Pickering, where his practice focused on administrative law, whitecollar crime, and appellate litigation. He graduated magna cum laude from the University of Michigan Law School, where he received the Henry Bates Memorial Scholarship, the school’s highest honor. Professor Bierschbach clerked for Judge A. Raymond Randolph of the US Court of Appeals for the DC Circuit and for US Supreme Court Justice Sandra Day O’Connor. He was a Bristow Fellow in the Office of the Solicitor General at the US Department of Justice, and was also an attorney-advisor in the Department’s Office of Legal Counsel. In spring 2004, he teaches Criminal Law and Corporations.
Several visiting professors are already familiar to the Cardozo community. These include Uriel Procaccia, who teaches Economic Approaches to Corporate Law, and Alex Stein, who teaches Evidence, Torts, and Medical Malpractice, both from The Hebrew University of Jerusalem; David Franklin, who first visited Cardozo in 2002, is teaching Torts and Constitutional Law; Renata Salacl, of University of Ljubljana, Slovenia, who visits often, will teach Psychoanalysis and the Law in Spring 2004; and The Habush-Bascom Professor of Law at the University of Wisconsin, Frank Tuerkheimer, who teaches Criminal Law and Professional Responsibility. Professor Tuerkheimer is also organizing a symposium about the First Amendment and the 25-year-old The Progressive magazine case, in which the magazine was enjoined from publishing an article that described the science underlying the hydrogen bomb. Professor Tuerkheimer, then US attorney for the Western District of Wisconsin, was involved in the case.
The Floersheimer Center for Constitutional Democracy, which supports several innovative events and programs at the Law School, has emerged as an important center for scholarly and practical discussion. Last spring, the Center supported a major international conference, Emergency Powers and Constitutions, which examined the challenges to finding a proper balance among national security, democracy, and fundamental rights.
Panelists included (from left at top) Prof. Dominick McGoldrick, University of Liverpool Law School, and Prof. Mattias Kumm, New York University Law School. Additionally, the program brought renowned intellectuals to campus for a series of seminars for students and faculty titled Religion, Law, and Politics. Peter Gay, director, Center for Scholars and Writers at the New York Public Library, is shown here (center) with the series codirectors: Prof. Michel Rosenfeld (left) and Prof. Bernhard Schlink, Humboldt University of Berlin and a visiting professor at Cardozo. Mr. Gay will return to campus this spring to coteach, with Professor Goodrich, Liberalism and the Rule of Law.
Burns Seminars Features Academics
Prof. Bill Bratton, Georgetown University Law Center, was a guest presenter at a Jacob Burns Faculty Seminar. He returned to Cardozo, where he once was a member of the faculty, to speak on "Sovereign Debt Restructuring and the Best Interest Creditors." The seminar series invites academics to share their current research interests with Cardozo’s faculty at lunchtime talks.
Honors & Awards
Monroe Price’s book Media and Sovereignty: The Global Information Revolution and Its Challenge to State Power, MIT Press, received an honorable mention for the 2002 Communication Policy Research Award, given by the Donald McGannon Communication Research Center. Professor Price coedited Minority-Language Related Broadcasting and Legislation in the Organization for Security and Cooperation in Europe and Public Service Broadcasting in Transition: A Documentary Reader, both published by Kluwer Law International. He wrote "Public Diplomacy and the Transformation of International Broadcasting," published in Cardozo’s Arts & Entertainment Law Journal. Last summer he participated in several international conferences, including the Baltic Conference on Media and Conflict, in Stockholm; the Athens Conference on Media Policy in Iraq; the Budapest Media Forum; Open Society Institute Seminars in Oxford and Budapest; and the Oxford Seminar on Information Policy and Development.
This summer, in conjunction with the launching of Michel Rosenfeld’s "A Identidade do Sujeito Constitucional" (a Portuguese translation of "The Identity of the Constitutional Subject," published in the Cardozo Law Review), the law school at the University of Minas Gerais in Brazil organized a two-day symposium on Professor Rosenfeld’s work. Panels were held also at the state of Minas Gerais legislature and at its labor court. This fall, Professor Rosenfeld traveled to Australia, where he was a panelist at the International Roundtable on Constitutional Courts in Melbourne and spoke on "Constitutional Adjudication in Highly Political Cases: The Example of Bush v. Gore." He also addressed the Federal Court of Australia in Sydney on "The Patriot Act and Threats to Civil Liberties." Last spring, he lectured on constitutional equality at Central European University in Budapest and on the European constitution at the Helmut Kohl Institute of European Studies at Hebrew University in Jerusalem. He spoke on "Constitutional Adjudication in Europe and The United States: Paradoxes and Contrast" at the Unidem seminar of the Venice Commission on European and American Constitutionalism, coorganized by Yale Law School and the University of Göttingen.
Barry Scheck and Peter Neufeld received honorary degrees last May from Northeastern University School of Law. This fall, Professor Scheck spoke on "Vindicating Claims of Innocence" at a conference on reforming capital defense systems at Hofstra University School of Law.
Paul Verkuil’s report (with coauthors) for the Social Security Administration has been cited in Congressional testimony by the Committee of Social Security as the basis for recommended changes in disability hearing procedures.
Papers, Panels & Speeches
Barton Beebe lectured on trademark law at the Stanford/Yale Junior Faculty Forum, and at the Tulane, Michigan, George Washington, and Fordham Law Schools. His article "The Semiotics of Trademark Law" will be published in the UCLA Law Review. J. David Bleich’s article "Mizvot in the Polar Regions and in Earth Orbit" appeared in Tradition, and "Zman Hadlakat Ner Hanukkah" was published in Ha-Pardes. He also contributed "Palliation of Pain: A Jewish Perspective" and "Medical Malpractice" to Topics in Jewish Medical Ethics. He spoke on "Parity Between the Spouses in Execution of a Religious Divorce" at the Faculty of Law, University of Haifa, Israel; on "The Iraqi Incursion: A Halakhic Perspective" in Frankfurt am Main, Germany; and on "The Ethics of Warfare: A Jewish Perspective" at the Center for Jewish History, New York.
Daniel Crane’s article on antitrust concerns in patent settlements, published in Florida Law Review, was cited twice in a recent Eleventh Circuit decision, Valley Drug Co. v. Geneva Pharmaceuticals, Inc. "Ease Over Accuracy in Assessing Patent Settlements: A Reply to Hovenkamp, Janis, and Lemley" will be published in the Minnesota Law Review.
Susan Crawford was a policy fellow last year at the Center for Democracy & Technology in Washington, DC, where she wrote "Implications of the Broadcast Flag: A Public Interest Primer." At the Council on Economic Development, she and Elliot Maxwell delivered "Promoting Innovation in the Online World: The Problem of Digital Intellectual Property." She presented "The Biology of the Broadcast Flag" at the annual scholarship conference of the Society for Evolutionary Analysis in Law and participated in the Internet Policy Project roundtable at the Aspen Institute Communications and Society Program.
Toni Fine’s American Legal Systems: A Resource and Reference Guide is being used by students taking a new course in the American legal system at Sulaymaniyah University, in Kurdish northern Iraq. Both the original English version, sent by her publisher, and the Arabic translation from the US State Department were made available with help from Lawyers Without Borders.
E. Nathaniel Gates’s "Let Us Be Done With Totalizing ‘Black’ Histories" appeared in Cardozo Law, Policy, and Ethics Journal.
At International Law Weekend, Malvina Halberstam organized and participated in two panels. She spoke on Abrams v. SNCF, a case against the French National Railroad Corporation, which she argued and won in the Court of Appeals for the Second Circuit. She presented "The US Should Indict Yasser Arafat and Terrorists Who Murdered US Citizens in Judea, Samaria, and Gaza" at the National Conference of Emunah. She spoke in Westchester, at the consortium of five synagogues, on "Israel’s Legal Rights to Judea, Samaria, and Gaza." Her recently published articles include "The Evolution of the United Nations Position on Terrorism: From Exempting National Liberation Movements to Criminalizing Terrorism Wherever and by Whomever Committed" in the Columbia Journal of Transnational Law and "Belgium’s Double Standard" in the Washington Legal Times.
Marci Hamilton is representing homeowners suing the City of Los Angeles and a religious institution for failure to enforce residential zoning requirements, challenging as well the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
She continues to write and speak often on federalism, the First Amendment, and church/state issues. Recent publications include "Federalism and the Public Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act" in the Indiana Law Journal and "Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy" in the Journal of Law & Politics. She addressed Pennsylvania appellate judges in Nemacolin, PA, on "Federalism" and debated the subject with former solicitor general Seth Waxman before judges of the US Court of Appeals for the Second Circuit. She spoke on "The Theological Origins of the Nonaristocratic Character of Representation in the United States" for a symposium on direct democracy at San Diego Law School, and on "RLUIPA and the Constitution" at the annual meeting of the ABA.
As a panelist, she discussed the First Amendment at the National Constitution Center in Philadelphia, PA, at the Federalist Society Annual National Lawyers Convention, where she also spoke on "The Reach of the Federal Government into Religious Organizations," and at the National Crime Victims Bar Association in Washington. She spoke on "Justice Harlan's Legacy" at the Woodrow Wilson School of Public and International Affairs in Princeton, NJ, and on "Calvinism and the Rule of Law" at Princeton Theological Seminary..
Justin Hughes, who was program chair at FindLaw’s Corporate Counsel IP Strategies Conference this fall, also spoke on "Trademarks, Geographical Indications, and Restraints onTrade" at the Queen Mary’s College-Fordham University Intellectual Property Conference in London and lectured in the US State Department Public Diplomacy Program in Laos and Malaysia. Earlier, he spoke on "Database Protection as Protection of Information: A US Perspective" at the University of Oslo, Norway and moderated a panel at the Annenberg School of Communications at the University of Southern California conference on China and the Internet. At the International Property Law and Policy Conference at Fordham Law School, he spoke on "The Doha Agenda and Geographical Indications." Last spring, Professor Hughes was the third Hoosier Distinguished Visiting Professor in Intellectual Property at DePaul University in Chicago.
Kyron Huigens presented his paper "A Specification to Coherence Model of Punishment's Justification" at Notre Dame and University of Pennsylvania Law Schools and in the United Kingdom at Nottingham, Birmingham, Oxford, and Edinburgh. He delivered "Battered Women on the Perplexing Border" at the Michigan, Wayne State, and Iowa Schools of Law. At Notre Dame, he also spoke at the Federalist Society’s annual student symposium on "Dignity and Desert in Punishment Theory," a version of which will be published in the Harvard Journal of Law and Public Policy.
Lela Love coauthored, with Joseph Stulberg, "Partnerships and Facilitation: Mediators Develop New Skills for Complex Cases" in Dispute Resolution Magazine. At the US Department of State, she addressed a delegation from Kosovo seeking redress for persons missing since the end of the Kosovo war. She was the program chair of the American Bar Association Annual Conference in San Francisco, where she presented the 2nd Annual Lawyer as Problem Solver Award, and was a panelist on "Mediation Update: Late- Breaking News on Cutting Edge Topics."
Jeanne Schroeder published "The Lacanomics of Apples and Oranges: A Speculative Account of the Economic Concept of Commensurability" in the Yale Law Journal; "Can Lawyers Be Cured?: Eternal Recurrence and the Lacanian Death Drive" in the Cardozo Law Review; "Law’s Nonexisting Empire and the Barred Other" in the University of Miami Law Review; "The Appearance of Wrong and the Essence of Right: Metaphor and Metonymy in Law" in the Cardozo Law Review; "Economic Rationality, Empathy, and Corporate Responsibility" in the George Washington Law Review; "A Repo Opera: Reflections on Repos and Criimi Mae" in the American Bank Law Review; and "The Stumbling Block: Freedom, Rationality and Legal Scholarship" in the William & Mary Law Review.
She spoke at the University of Miami Law School faculty seminar and at the Law and Culture Annual Meeting on "Envy, Jealousy and Insider Trading: The Case of Martha Stewart." At the McGill University Law School faculty seminar, she spoke on "The Stumbling Block: Freedom, Rationality and Legal Scholarship."
Martin Stone presented "Fish on Interpretation" at the International Congress on Contemporary Problems in Philosophy of Law, at the Universidad Nacional Autonomo de Mexico (UNAM) in Mexico City, a version of which will be published in Postmodernism and Sophistry: Stanley Fish and The Critical Enterprise, by SUNY Press. His article "On the Old Saw, ‘Every reading of a text is an interpretation’: some comments" was published in The Literary Wittgenstein. He also delivered "Interpretation in Law and Literature" at the 4th Annual Meeting of Italian and American Philosophy.
Suzanne Stone moderated a panel at Fordham University School of Law on the constitutionality of kosher legislation, "Can the State Regulate Kosher Food?"
Peter Tillers blogs (a blog, or weblog, is a personal Web site updated frequently with links, commentary, or just about anything else) for JURIST, a Web site for law teachers. His blog is called "Tillers on Evidence," http://www.jurist.law.pitt.edu/views/blogs/tillers/. Last summer he lectured at the Konstanz International Summer School and recently coedited an Italian translation of "L’inferenza probabilistica nel diritto delle prove," published by the Giuffrè Publishing House.
Richard Weisberg debated Prof. Sandford Levinson, University of Texas Law School, on the issue of "Torture: An Acceptable Practice?" on National Public Radio; was the keynote speaker at a Law and Literature symposium at the University of Verona, Italy; and participated in "Nietzsche and the Law," a two-day roundtable at the University of Illinois/ Champagne Urbana. He offered a faculty workshop on Law and Literature and a lecture on Vichy and the Holocaust at the Wake Forest Law School.
Lynn Wishart published an article with Alan Wolf ’94, "A Tale of Legal Research—Shepard’s and KeyCite Are Flawed (or Maybe It’s You)," in the New York State Bar Journal.
Ellen Yaroshefsky discussed corporate governance on a panel at the New York Council of Defense Lawyers with New York State Attorney General Eliot Spitzer, Judge Jed Rakoff, SEC Commissioner Harvey Goldschmid, and others. She spoke on "Lawyering and the Internet" at the New York County Bar Association, and on "Hot Topics in Legal Ethics" at the National Employment Lawyers Association.
Edward Zelinsky argued his commuter tax case Zelinsky v. Tax Appeals Tribunal in the Court of Appeals and lost. Now he is petitioning the US Supreme Court for certiorari.
Rosalind Lichter was elected chair of the entertainment law committee of the Association of the Bar of the City of New York.
Leon Wildes did a voiceover for a new play, Ears on a Beatle by Mark St. Germain. The play, based upon official FBI records of the surveillance of John Lennon and his wife, Yoko Ono, records Professor Wildes’ impressive accomplishments in Lennon’s immigration case.
Holocaust Studies Center Names Research/Teaching Fellow
This fall, Eric Freedman was named the first research and teaching fellow of the new Center for Holocaust Studies and Human Rights. An expert on the history of the Holocaust and the attempts by some European countries to compensate victims and their descendants, he will teach a seminar this spring on Vichy and the Holocaust.
"Eric Freedman brings a unique background and mix of talents to the Center," says Richard Weisberg, who is responsible in part for the allocation of funds by Judge Sterling Johnson to Cardozo for the Center (see page 6). "He has special expertise regarding the renowned Romanian-French philosopher Benjamin Fondane, who hid throughout the Vichy years, until tragically he was betrayed at the last moments of the Occupation and sent from Paris to Auschwitz, where he died. Professor Freedman has dedicated much of his intellectual life to studying such betrayals and why organized slaughters of innocent people take place so frequently in so many parts of the world."
Since 1986, Professor Freedman has been teaching international negotiation in both the law and humanities faculties of the Université d’Orléans. In 2001 he was named a research consultant to the Wiesenthal Center Europe, working on the Drai Commission, a governmentappointed body charged with resolving Holocaust-related claims in France.
Professor Freedman has written extensively on applied linguistics, negotiating, literary and film criticism, and law and literature for such publications as the Annals of the Romanian Academy, Cardozo Studies in Law and Literature, Europe, and Screen. His most recent papers include "La philosophie de Chestov dans le theatre de Fondane," "Le Concept du gouffre," and "Is the French Commission on Holocaust-era spoliation indemnification a conciliation commission?"
Professor Freedman is British and was educated at the University of Newcastle in the United Kingdom (B.A. Honors) and at the Sorbonne in Paris. He also engaged in postgraduate research at Cornell University. From 1976 to 2002, he was educational and training director at the French Institute of Management in Paris. Prior to that he taught French studies at Cornell University and Middlebury College.